Posted
by
CmdrTaco
on Saturday April 12, 2008 @09:24AM
from the last-ditch-efforts dept.

Thomas Hawk writes "An appeals court today shot down Dish Network's last chance to avoid a multi-million lawsuit verdict won by TiVo over their time shifting DVR technology. In addition to having to pay TiVo a minimum of $92 million, Dish Network will also now have to honor a court injunction to turn off DVR software to most of their customers. I hope Dish Network customers like commercials with their daily dose of Dr. Phil."

Americans are a complacent lot. They'll tolerate taxes and fee increases, regulation, government snooping, abridgement of century-old (and God given) rights, etc. with maybe one in ten thousand even bothering to pick up a telephone or a pen and contact their congressman or senator.

But if you fuck with their television, you'll see angry roving mobs take to the streets that make "21 days later" look like a tea party. I suspect this will not end well.

I was trying to think of something really witty to say, something that would totally make the parent rethink their post and question their whole thought structure on Americans... but all I could come up with was this Family Guy quote:

We already accept DRM. And in the very near future we'll be blocked from recording or timeshifting some programs and we'll just shrug our shoulders and accept it. This is how IPTV will "revolutionize" television.

If he does, then he's not in the minority. I bet 99% of the people who read this post are XBox, PS3 or Wii owners: I think the DRM on those systems is tolerated so widely because it just works. Even nerds who understand the implications are willing to buy into it.

Some people object to DRM on ideological grounds, but not many. It's like free software versus commercial software. You can decide to use only free software because it fits your personal ideology, but most people use a mixture of free and non-free software. If good free software doesn't exist for a task, then they pay up. Equally, we would all prefer to have no DRM, but we can tolerate it if it means we get to do something that we wouldn't otherwise be able to do.

Use is not synonymous with acceptance. Toleration or passivity in the face of it is; personally, I'm active in a number of ways, from not allowing DRM of any kind on the commercial executables we produce, to creating PD software that demonstrates the fallacy of the GPL type of approach, to pestering my representatives to stop creating legislation that presumes citizens are criminals absent probable cause, oath or affirmation, and warrant. I donate to causes that support this view, and speak against causes that criminalize legitimate action.

As long as you continue to replace DVD players with Blu-Ray players. And continue to upgrade your equipment to DRM-enabled versions, you are accepting DRM. As long as there demand for DRM there will be supply. And providing demand is acceptance when alternatives exist and are actually cheaper.

ps - try as we might, we will not be able to defeat the GPL empire. I do MIT license and PD software. But it just gets bundle with a bunch of GPL stuff anyways. GPL's model always wins even if it's the wrong model.

So, what's the "right model?" I like FLOSS because it's about freedom and choice for both author and user. When I choose to use a FLOSS package, I don't prefer one licensing model over another, but if I were creating one from scratch, I'd choose the license that was most appropriate for the intended use, which might be GPL, LGPL, or a BSD-like one.

It's DRM none the less, and it is (if I'm not mistaken) a felony to circumvent that DRM in the US. Also, how many VHS tapes are available for rent or sale at your local video store? Watch as studios slowly squeeze out the DVD and force those pesky "consumers" to "upgrade" to Blue-Ray.

Alternative to iTunes - DRM-free MP3 download(amazon, etc), CDs that are not protected(harder to tell)

Sure, if you live in the US. Amazon does not sell MP3 downloads to fore

PD is superior in every way, because it gives, it promotes freedom, it does not coerce, it does not fund and encourage shysters and shysterism (though it gives you the freedom to do so if you so choose), it is neutral as to commercialism and charity and philanthropy and service, builds a base of 100% usable prior art, a library of freely available resources to give people a leg up without forcing them into a restrictive model of any kind, while still giving them the option of any model they freely choose t

Your first paragraph extols "PD" (the public domain?) over the GPL (and does so unfairly, IMHO).

In order for that part of your comment to be meaningful, you need to say why you think my characterization was unfair. I have reasons for what I said (and I've laid them out, but I'm prepared to be more specific as required.)

In your second paragraph, you sound more like a copyright holder embittered by piracy on one hand and by the GPL on the other than like a big contributor to the PD.

Not really an alternative to BluRay, the video is SD-only (768x576 for PAL 16:9). And the DRM's only "laughable" because someone broke it:P

Even VHS, reading books and going to live theater is an "alternative to BluRay".

Get a LiteOn CD/DVD drive.

The point is to discourage friends and family from getting CDs that they can't rip unless they have the magic geek hardware. I've had to loan out my DVD-RW drive to friends before because it seems to rip CDs just fine.

* They say things like DRM is slavery, and if I were to dare to buy, say, a Kindle, I am helping promote slavery. That's an insult to all the people who have been victims of actual slavery.

* I'm an adult. I can look at the terms of, say, Amazon's DRM (to continue using the Kindle for my examples), and weigh the conveniences the device offers, vs. the risk of being screwed if Amazon pulls a Google and cancels the service with no refunds, a

Anyone who thinks "DRM is always bad" is an idiot, a zealot, or both. There is nothing inherently wrong with DRM itself.The problem is POOR IMPLEMENTATIONS of DRM.

People are willing to accept DRM on their game systems because when people buy a game for their game system, they expect that the game will work on their game system, or any other game system of the same model. And it does. Nobody expects to take their Nintendo CD and pop it into their PC or Mac or to rip the bits off the CD and run it on their

I disagree. Blu-Ray and HDMI and HDTV and IPTV are all hot technologies with consumers right now and all have very intrusive DRM.

I think Vista is having trouble in the market because consumers perceive it as incompatible, slow, unstable and annoying (with its attempts to protect users by using a million dialogs). Vista will win out despite consumers because Microsoft has the strength to force a noisy minority to comply. (it's a significantly large minority though!)

You're painting with some very broad strokes there. I receive completely DRM-free and free of cost HDTV broadcast all the time. AFAIK, the FCC neither requires nor allows any kind of DRM on ATSC broadcast, though it has been threatened and defeated (hopefully indefinitely) in the form of the "broadcast flag."Also, IPTV does not refer to any particular system or standard, but just the general approach of sending TV over IP. I don't know how many different IPTV systems there are, but there are probably some t

FYI this has no effect on anyone with a newer model Dish DVR, i.e. they aren't going to take it away from you. New software was pushed out 6 months ago to replace the infringing software. If you have a real old one, now is a good time to upgrade.

Looking around, Tivos patent covers pretty much any digital recording features. Dual tuners, fast forward, pause, rewind, etc. There really isn't a way to even skirt around these concepts and still be able to call a DVR a DVR anymore unless you're paying Tivo.

Articles mention this win will allow Tivo to pretty much go after anyone and everyone, and I'm going to guess Echostars "next generation" DVR software will also fall be next up on the chopping block. Unless of course their new DVR software doesn't allo

Bethinks the AC speaks of the newer, non-infringing version, and that Dan refers to the older, Tivo-like version.I agree: it sucks to have to pay a fee ($5/month for DirecTiVo, which is crippled, blah, blah, blah), but the interface is nice, there are multiple hacks which are time-tested, and no one's coming down on the hackers. Okay, they're clobbering the hacks with software upgrades, but there are workarounds for this.

I feel the same way about the TiVo suit that I did about the 1987 Microsoft suit: It's

BeyondTV on Windows XP, actually. I studied Myth and just didn't think I had what it takes to achieve all my goals on Myth and Linux. BTV was something I tried the demo of when I was a poor college student with a cheap-ass tuner card, and it impressed me back then, so when I had the money to build a real DVR box I paid for it.My only complaints about the platform:1. BTV doesn't support closed captioning in any form, be it live TV or recorded.2. It doesn't play DVDs. Its excellent "Firefly" remote works out

I've had both, after recently switching back to Dish. I had two Tivos for years, one a very early model Series 2 and a later one.The later one had a huge hard disk but was constantly plagued with problems that appeared to be related to the use of a cheap hard disk -- reboots, lockups, etc.

The earlier one was better built, but limited in recording space.

The multi-tuner Dish 722ViP capable of recording from two satellite tuners at once, as well as a built in ATSC tuner (who would have thought that a company

The decision, however, will have no effect on our current or future customers because EchoStar's engineers have developed and deployed 'next-generation' DVR software to our customers' DVRs. This improved software is fully operational, has been automatically downloaded to current customers, and does not infringe the Tivo patent at issue in the Federal Circuit's ruling.

"All DISH Network customers can continue to use their DVRs without any interruption or changes to the award-winning DVR features and services provided by DISH Network.

"We intend to appeal the Federal Circuit's ruling to the United States Supreme Court."

If DISH network has corrected the problem with a new software download, why do they need to pursue this to the US Supreme Court?

It would seem that it is SOP for a manufacturer to EOL a piece of equipment. Tell the users they need to upgrade. There will be some gnashing of teeth, some users will flee, but if the new product is better... Some people need a shove to move on.

Having said that, I would be pissed off if someone told me I had to abandon a perfectly functional piece of kit and upgrade. I sure a community of terrorists that have hacked their own distro of Linux onto it to maintain functionality could be found. Someone would do it because they could.

Any idea how this affects Bell Express Vue in Canada? I notice about 3 months ago we received new software that did more things that were TIVO like. Record all eps, record all new eps, priorities and so on...

If DISH network has corrected the problem with a new software download, why do they need to pursue this to the US Supreme Court?
Because the courts have valued the use of TiVos patents for the time that Dish was using them without permission at $92 Million. The appeals process is all they've got to avoid, or maybe just delay making that payment. Just because you've stopped doing the illegal act, doesn't mean you get away with what you did in the past.

I found the original article somewhat interesting as it stated that the rulling was absolutely final with no chance of appeal. Which as anyone would know is not the case as there is always the option of an appeal to the Supreme court.

In ordinary cases this would not be very likely to succeed, but the SCOTUS has already accepted an appeal on a similar patent issue. And it is very likely that this will be decided in a maner that would affect this case.

I'm out of the loop these days. I used to have a DirecTivo (series 1) which I'd upgraded the HDD, put a NIC in and could download any shows I wanted to put on CD/DVD. Been a good 4 years since I sold it off.Since then, I moved to MyhtDora [g-ding.tv] (Fedora + MythTV, with install almost 99% automated). I love it, but I'm out of the loop on what Tivo and Dish have to offer.

Just what is Tivo suing Dish over?

If anyone knows both MythTV and Tivo, what features does Tivo have that I can't do on my MythTV box (for virtua

Doing a google of the patents and lawsuit, it seems they sued them over any manipulation (Or, "Warp" in their terms) of the feeds. Ie. Pausing live tv, fast forwarding, rewinding, pretty much any DVR function. Other articles mention many other companies will be sued next.

Which makes me wonder how MythTV and others will do. I suppose so long as it is for personal use and not commercial it should be safe.

I still don't get how Tivo got a patent on that sort of thing. One has been able to do the same with VCRs and even PCs with tuner cards well before Tivo existed. Hmph, more examples of why the patent system is broken.

This is related, in some way.
I have a crappy, buggy Directv HR20 HD DVR. I received a message a couple days ago.

Effective April 15, 2008, DVR recordings of PPV movies will be available for 24 hours of unlimited viewing after purchase. Major movie studios have required that satellite and cable providers alike may no longer allow their customers to view these recordings for longer than 24 hours. During the 24 hour viewing period, you will continue to enjoy all of your DVR features such as pause and rewind.

It seems if I were to record a PPV movie (I don't, I don't like their PPV prices) I now have only one day to watch it before they are going to remotely erase it from my DVR.
Unbelievable.
Now there's DRM for ya!

At the risk of getting flamed into oblivion by the "DRM BAAAAD" crowd... surely if you PPV a movie, you're paying for the right to watch it once. Like going to the cinema - if you want to see it again, you buy another ticket. This is pretty much how Sky advertised their 'Box Office' PPV service - "it's like a cinema in your living room" (IIRC).

Except in this case you can live-pause the movie while you refill your tub of popcorn, grab another beer, or whatever. Then if you missed a few seconds you can kick

I'm rather biased against Echostar, having worked there briefly. Dealing with their HR department several years later to obtain some records was just as unpleasant as actually working for them was. I usually get knowing nods and comments from recruiters whenever I discuss it, so I know it is not just me who has had these sorts of problems with them.

If their legal department is anything like their HR department, talking to them was pretty much useless. I'd be surprised if Tivo had any recourse other than to sue them. Although I hate software patents and think that many DVR-related ones are completely retarded (TV Guide has one for the guide grid format, for example) I can't suppress a certain amount of glee that this misfortune has fallen upon Echostar. So I'm just going to point at them and go "Ha-ha!"

Yeah, but knowing Dish Network...they probably weren't interested in paying someone for technology that they developed.The entire patent is bogus. Tivo combined time-shifting with a digital storage device and an on-screen guide. Hmmm. Time-shifting is not patented by tivo. Digital storage of video is not patented by tivo. Dish Network and DirecTV actually hold prior art on the on-screen guide. This seemed like a fairly obvious usage of common technologies.

I was responding to somebody who asked why TiVo was singling out Dish Network, but not going after DirecTV or Comcast. If DirecTV uses TiVo branded DVRs, that seems like a pretty reasonable explanation for why they weren't suing DirecTV in addition to Dish Network. Perhaps if you had bothered to read the comment I was replying to, you'd have understood the relevance.

They used to, they are now moving to an MP4 format for some of their HD with plans to move all of their HD to it eventually. The DTIVO boxes will be unable to decode this and their HD boxes will also be obsolete. I was going to move to HD but refused for over a year after getting an HD TV because I didn't want to be trapped in this morass (I had DTIVOs). I ended up waiting long enough that FIOS came along and saved me - I now have a TIVO HD and CableCards - very happy!I have now had two friends BEG me to fi

Umm, Direct has some licensing going on and ComCast has also licensed TIVO software from TIVO and is starting to load it on some of their own DVR STB hardware with future plans to roll it out. As for making TIVO look bad, TIVO built some innovative software and patented it. DISH *knew* this, even looked at their software to use it themselves maybe, but afterwards decided to build their own. Like them or not the software patent was there and DISH infringed, worse they built SHITTY software for which I left t

Also, does this have ramifications for other disk-based DVR's such as those offered by cable companies and DirecTV?

Can you even buy disc based DVRs in the US anymore? I was visiting the in-laws at christmas and thought I'd pick up a cheap DVR in the US (given the the US$ is so weak compared to the Canadian at the moment) and could not find one anywhere. Best Buy, Wal-Mart, some local Albuquerque shop - nothing and the same on their websites.

Like he said, decoupling the DVR from your television provider would be a great thing. Here in the UK you are free to choose a freeview DVR, or just a converter box, but sky and cable come with their own.

if you actually owned a tivo, you wouldn't be saying any of that. Tivo really provides a better dvr experience than any other. That and dish network decided they didn't want to deal with tivo in the beginning. So they just made their own bed.

Perhaps it's that Tivo "just works"? If I wasn't gainfully employeed and had tens of hours a week to burn, I'd get a MythTV box. If I wanted to be frustrated all the time when watching TV, I'd get a Comcast DVR system. Tivo's benefit isn't software, or the guide data, it's usability. Those of us with disposable income don't mind paying $15/month to have all of our shows waiting for us and not having a problem when we try to watch them.

Funny, my 722 DVR from Dish just works, "New Episodes", hit record when I find the program in the guide, ability to search the guide by genre, keywords, actors, etc... And it only costs $6 a month. I can see how I'm being shafted, true enough.

Nothing non-obvious? So then you thought of it first? Wow! Oh wait - you didn't?! Then sit down and shut up.I've seen\used the other DVRs that are apparently also using the same "obvious" ideas and they SUCK while using a TIVO is actually pretty good. Gee, why is that? Could it be because TIVO has had incentive to innovate and not just give us a VCR with the tape swapped for a HDD? Perhaps because they are divorced from the service providers tit and have to work to get customers?

I've seen\used the other DVRs that are apparently also using the same "obvious" ideas and they SUCK while using a TIVO is actually pretty good.

How does that relate to the "Time Warp" patent (#6,233,389)? This patent is actually rather narrow and describes low-level implementation details that are totally invisible to the user. The claims are, IMO, obvious to an average developer, but they are worded in such a way that it's not hard to come up with a slightly less obvious implementation that doesn't infringe. The fact that EchoStar put out a software update that works around the patent supports this.

I wasn't responding to the specific patent claim any more than the previous poster was. He claimed TIVO did nothing non-obvious and I'd say that the "obvious" ideas the likes of DISH and Direct are using in their own hardware blow, as do the various cable boxes out there. TIVO did it better and DISH built an inferior version\COPY that they claimed was just as good. Literally I might add - DISH reps stated that to me when I switched and so did Direct when I dropped their ass.What exactly makes you think that

What exactly makes you think that the Echostar update claim clears them?

The claims in the patent cover only specific arrangements of data streams. By routing data in a way that's not quite as obvious as the way the patent is worded, it would be relatively straightforward to create a non-infringing implementation.

Again I will point out that they didn't think they were infringing before but were found to be. Time will tell but if it were this easy one wonders why the new code was only deployed just six months ago - this suit has been far longer running.

OK, maybe you're right. I can't read and understand the patent claims. Echostar's patent lawyers can't read and understand the patent claims even after years of study. You can't understand them; in fact, nobody can understand them. (But maybe a jury of 12 random laymen off the street gets to decide what they mean.)

All that goes to show is just how arbitrary and stupid these obvious and vaguely worded software patents are.

Nothing non-obvious? So then you thought of it first? Wow! Oh wait - you didn't?! Then sit down and shut up.

Yeah, I did. Well, not me personally but the guys I went to college with in the mid 90s. They had cable fed into TV tuners and streaming to drives, controlled automatically by TV listens off the Internet. This was an obvious convergence of 1) TV tuner cards, 2) fast-enough processing at affordable prices, and 3) cheap-enough storage. TiVo came along and boxed it all up, then patented what other people had already been doing.

Well, not me personally but the guys I went to college with in the mid 90s. They had cable fed into TV tuners and streaming to drives, controlled automatically by TV listens off the Internet. This was an obvious convergence of 1) TV tuner cards, 2) fast-enough processing at affordable prices, and 3) cheap-enough storage. TiVo came along and boxed it all up, then patented what other people had already been doing.

Except that you haven't described TiVo's patent. They cover using a circular buffer so you can watch while you're streaming, without saving to a file.

Even thought I own a DishNetwork receiver, I think that TiVo was right to get their patent and Dish Network shouldn't have fought as hard as they did. TiVo isn't a bunch of patent trolls; they built and marketed hardware which other people copied.

Thank you for saving me the trouble of explaining this! I'd point out that had TIVO simply patented what already existed and was being used by kids in a college dorm that they would never have been able to get their patent in the first place. In theory anyway. TIVO wasn't selling anything until 1997 so clearly prior art, had their patent been so simplistic, would've been easy enough to dig up for this court case - and yet wasn't.You also do not see TIVO going after any of the software companies that make th

Patents can't protect a goal; the fact that you can meet a goal in another way doesn't infringe on the patent. What constitutes infringement is if they do it the same way, and since TiVO actually worked, while your idea only worked in theory, I'd say that they are different methods. It also is pr

Not entirely complete, of course -- I'm not sure/dev/video exists, I don't know what xanim is, and there's the matter of whether it's actually mpeg. But the concept is, in fact, blindingly obvious.

Sorry, I think you're full of shit. Or you have a different incompatible definition of "obvious" that is different from the one the rest of us use. Obvious means Easily seen through because of a lack of subtlety and I'm afraid that to fail the overtness test, the thing that is claimed needs to lack these very sub

We are talking about the ability to manipulate a buffer. Or to work with something half-downloaded. I have personally re-invented this concept, pretty much independently of Tivo -- in this case, it was figuring out that you can play back a file that is partially downloaded, before the download finishes. Looks like YouTube and everyone else are doing the same thing there.

MP3 is patented by side-effect; The MP3 patent covers a particular wavel

We are talking about the ability to manipulate a buffer. Or to work with something half-downloaded. I have personally re-invented this concept,

Not exactly. TiVO's patent covers the fact that the buffer is temporary, how it's rotated out, and you should look them up [linvdr.org] if you want.

But I don't actually know enough about the patents in question. However, if the concept is simply "pausing live TV", then it absolutely was an obvious idea, in that anyone forced to use Linux video tools from that time period would l

No, it isn't, and that's my point. That patent could only be infringed by your dd if it also:

Updating a flag, it won't do. Special "recovery utility" absolutely is done, frequently. Boot from the flash device is not done.

My point still holds, I think. Taking a laundry list of obvious things should not make it a patent. If one of them is non-obvious -- being able to boot from the backup, without restoring it, wasn't immediately obvious to me, but still doesn't seem very innovative -- then make that the pat

A ton of the patents are also held by ReplayTV, which came out just before Tivo. Replay was recently purchased by Direct TV, which is an interesting move since Replay and Tivo cross licensed their patents since neither one could produce a box without infringing on the other's patents.I also like the interface on my Replay boxes, unfortunately the company stopped making their set-top boxes and never addressed HD, but the features were great (and even their early models had the 8 second skip back and 30 secon

A ton of the patents are also held by ReplayTV, which came out just before Tivo. Replay was recently purchased by Direct TV, which is an interesting move since Replay and Tivo cross licensed their patents since neither one could produce a box without infringing on the other's patents.
I also like the interface on my Replay boxes, unfortunately the company stopped making their set-top boxes and never addressed HD, but the features were great (and even their early models had the 8 second skip back and 30 sec

OMG! The "8 second jump back"! What an amazing, novel concept! Hold us back, lest we froth at the mouth at this momentous innovation!

Spoken like a person who never had it.

The innovation is not only that it can jump back 8 seconds, but that there is a single button right your finger to do it. What's obvious is rewind. A one-button "Wait! What was that just now?" rewind is and was novel.

The jump back is so essential, I've caught myself reaching for it on the car radio.

DISH WILL NOT have "to turn off DVR to most of its customers". Anyone using the 622 or 722 (what they ship now as their DVR offerings) is NOT affected. Software was upgraded months ago specifically to get around the patent. If you have a far older DVR, then all this means, is you'll get a free upgrade to the new model, rather than paying for it. A pain in the ass though the patent is, a travesty this is not.

Mmm, pimping your own misleading blog FTW! It's not like many people in the comments of his own blog entry he submitted didn't point out this RATHER MAJOR DISCREPANCY... but oh noes! Removing scaremongering does not help pageviews, does it?

Not to mention that Dish like other large companies who have lost patent cases in the past, will simply "license" whatever tech they infringed upon. The lawyers get paid (again) and Tivo gets a well-deserved cash-flow fix.

Whoever thinks Dish will simply turn off DVR service with the flick of a switch, is sorely lost when it comes to even simple business tactics, let alone creative thinking.

You own the Dish DVR they gave you? Really? How much did you pay for it? Where's your receipt for it? You pay a fee because you RENT the fucking thing. I'd love to see your argument when you cancel your service. "Oh no, I own the DVR, you can't have it back".

Guess what? BUY a TiVo, then, and enjoy the FEE then for using a DVR you ACTUALLY OWN.

As I understand it, these are basically patents on the concept of a DVR. This means that they can sue any implementation of that concept, including MythTV/Fedora (or anyone running it).

Of course, I generally don't care, and I'll run things like libdvdcss, even though that's not technically legal in the US, so that I can play the DVDs I actually bought on the OS/player of my choice. I imagine you do the same. Just thought I should give you a heads up on the legal issues...